Plaintiff Dwight E. Wininger hereby moves for an order enlarging time to postpone the briefing schedule on class certification, so that plaintiff's opening brief would be due 21 days from the first Friday after the Delaware Supreme Court issues a ruling on the interlocutory appeal of the preliminary injunction issued in the Delaware action, and so that the remainder of the briefing would proceed in accordance with the time intervals of the current briefing schedule. Plaintiff files this motion as an ex parte motion in accordance with Civil L.R. 7-8(c) and 7-11. Defendants have stated that they do not oppose plaintiff's request for a postponement. Ex. A at 1.¹ On March 11, 1998, plaintiff gave notice of this motion to defendants, and gave courtesy notice to proposed intervenors Sutherland, et al. and proposed intervenors Boyden, et al. Ex B. This motion is based on the Memorandum of Points and Authorities herein and the accompanying Declaration of Alex J. Luchenitser.

The Court set a hearing on class certification for May 29, 1998 and ordered plaintiff to file his opening brief by March 20, 1998. Discovery on class certification was scheduled to take place from March 20 through April 19. As a result of recent events and the posture of this litigation, plaintiff respectfully requests a postponement of the current briefing schedule.

The implementation of the Proposed Plan has been enjoined by the Delaware Court of Chancery, and the defendants have appealed the Chancery Court's decision to the Delaware Supreme Court. All briefing and argument on this appeal was completed by January 5, 1998. Ex. C at 2. Surprisingly, despite the fact that the appeal was "expedited," the Delaware Supreme Court has not ruled yet. Delaware Supreme Court internal operating procedures require the Delaware Supreme Court to decide all matters (regardless of whether they are "expedited") within 90 days of completion of briefing and argument. Ex. D. Therefore, it is very likely that the Delaware Supreme Court will issue a ruling on the pending appeal by April 5, 1998.

Defendants have very recently stated that they will withdraw the Proposed Plan if the Delaware Supreme Court affirms the Chancery Court's issuance of a preliminary injunction. In their opposition to a motion to compel discovery filed by plaintiff, defendants stated, "If the Delaware Supreme Court affirms the decision of the Court of Chancery then the Plan will never be implemented . . . ." Ex. C at 1. At a discovery conference held before U.S. Magistrate Judge Bernard Zimmerman on March 5, 1998, defendants confirmed that they will withdraw the Proposed Plan if the Delaware Supreme Court affirms. Ex. E at 3-5.

In the current posture, plaintiff does not believe that it makes sense to begin briefing or discovery on class certification. If, as plaintiff believes is probable, the Delaware Supreme Court affirms, it is highly likely that the Proposed Plan will be withdrawn during the currently scheduled briefing and discovery period for class certification. Whatever the ruling of the Delaware Supreme Court is, it will have a dramatic impact on this litigation and the issues relevant to class certification briefing and discovery.² Therefore, it does not make sense for the parties to expend significant resources on class certification briefing and discovery prior to the issuance of the Delaware Supreme Court's ruling. Cognizant of the circumstances, defendants have stated that they do not oppose plaintiff's request for a postponement of the briefing schedule. Ex. A at 1.

Plaintiff proposes that the briefing schedule be revised as follows: Plaintiff's opening brief would be due 21 days from the first Friday after the Delaware Supreme Court issues its ruling. The remainder of the briefing would proceed in accordance with the time intervals of the current briefing schedule. In other words, the discovery period would be the first 30 days after the new due date for plaintiff's opening brief, any oppositions to the class certification motion would be due 49 days from the new due date for the opening brief, plaintiff's reply would be due 56 days from the new due date for the opening brief, and the hearing would take place 70 days from the new due date for the opening brief.

A proposed order incorporating the proposed briefing schedule is enclosed. Given that a ruling by the Delaware Supreme Court is likely to be issued by April 5, 1998, the continuance contemplated by the proposed order will likely be a short one of about one month or less.

For the foregoing reasons, plaintiff respectfully requests that this unopposed motion for an enlargement of time be granted.

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¹ All exhibit cites herein are to the Declaration of Alex J. Luchenitser filed herewith.

² For example, the group of limited partners represented by attorney William Bode have argued that the interests of plaintiff Wininger are in conflict with the interests of other limited partners because plaintiff has sought an injunction against the Proposed Plan while other limited partners have supported implementation of the Plan. When the Proposed Plan is withdrawn, this purported conflict evaporates.